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The Law Clerk Chronicles – Proper Use of Magistrates

By February 5, 2004Uncategorized

Today they are referred to as ‘magistrate-judges’, but when I was clerking back in 1985 they were simply called ‘magistrates.’ The titles used are really unimportant; the fact is that magistrates perform important roles in the federal judicial system, even though that role may vary significantly from jurisdiction to jurisdiction.

It seems to me that, overall, magistrates are given greater responsibility today than they were 20 years ago. For example, in the Eastern District of Louisiana magistrates routinely conduct settlement conferences and trials (with consent of the parties). But there is one practice involving magistrates that I have come across in jurisdictions outside of the EDLA that I simply don’t understand: i.e., the referral of dispositive motions to magistrates.

Perhaps, in a selective case it might make sense (I can’t think of a good example). But why would a district judge routinely refer dispositive motions to a magistrate for decision? Whoever loses the motion before the magistrate is probably going to appeal to the district judge, who will have to conduct de novo review of the merits of the motion. This practice seems like a complete waste of everyone’s time: the litigants, the lawyers, and the magistrate.

The judge I clerked for was keenly conscious of using efficient practices in administering his cases; he would never have referred a dispositive motion to a magistrate. In fact, in certain cases, he sometimes would revoke the automatic reference of discovery motions (a standard practice in the EDLA) to the magistrate. He would do this when it appeared that the parties were locked in silly discovery squabbles. Some district judges felt it was beneath their dignity to deal with discovery matters, but my judge felt that –if it would help move the case along– it was often appropriate for him to deal with discovery matters.

Well, I should qualify that. He didn’t have to deal with the discovery matters very much, because, once he made it clear (in a stern voice) that he wasn’t going to put up with ‘discovery gamesmanship’, a lot of the squabbling mysteriously disappeared.

One thing that made my judge so effective, it seems to me, is that his mind was always focused on the question: what can I do next to most efficiently process this case? It would be nice if more judges had a similar focus.

I remember once, early in my clerkship, I prepared a ‘bench memo’ on a motion for partial summary judgment that was filed on one of our cases. I had researched the law and concluded that the moving party was almost certainly entitled to have the motion granted. The judge came back to me and asked me if I was crazy. I was puzzled, so he explained. He said unless the motion was a lock-cinch winner in the eyes of the U.S. 5th Circuit (a difficult thing to determine in most cases) he wasn’t going to grant the motion.

In fact, he said, he wouldn’t grant the motion even if it was a lock-cinch winner –unless it could be demonstrated that, by granting the motion, the amount of trial time would be significantly reduced. As a newbie law clerk I had no idea that this ‘trial time’ concept was a factor in deciding a motion for partial summary judgment, but his explanation made perfect sense once I thought about it. Why grant a motion that gets rid of a legal claim or issue if it doesn’t provide a tangible benefit, but instead creates a small (but not insignificant) risk that, after trial, an appellate court may conclude the motion was improvidently granted and reverse the case and order a completely new trial.

In other words, sometimes small decisions create risks that will lead to a huge inefficiency in the administration of justice. The good judges are always thinking about these risks. Most lawyers don’t think about these things, and unfortunately many judges don’t either.


  • TPB, Esq. says:

    For us new lawyers, it almost seems as though the magistrate judges are there specifically to address the dispositive motions. I’ve appreciated that, because it means that the magistrate has an opportunity to either bring you back to chambers to negotiate the issue, or to hear the case, and then let you negotiate again before the district court judge. It almost becomes like a mini-trial. Since the DNJ judges aren’t afraid of reversing their magistrates, and the magistrates aren’t, in turn, afraid of being reversed, it helps attorneys refine their arguments.

  • Milbarge says:

    I see a lot of prisoner litigation at the appellate level, and many of the cases have gone through magistrate judges. In fact, a good number of prisoner sec. 1983 suits are handled start-to-finish by the Mag.J. (assuming consent, of course). Both in those kind of cases, as well as habeas corpus proceedings, the magistrates can deal with prefatory stuff like determining whether the prisoner has fulfilled all the obligations like suing the right people, exhausting state or prison remedies, is within the statute of limitations, etc. Sure, a district judge could do this too, and often the prisoners won’t consent to the magistrate’s jurisdiction (I’m amazed at how many specifically ask to get assigned to the “chief judge” apparently on the assumption that he or she will do a better job), but it can clear off a lot of plainly frivolous cases quickly. Also, even though they get notified of the rule, many prisoners don’t realize they have to file objections to the magistrate judge’s report and recommendation within ten days. If they don’t, not only can the district court simply adopt the report as its own findings and ruling, *failure to object waives any appellate review.* I’m not saying district courts use the magistrate judges to weed out unskilled litigants, but failure to object to the R&R is a very easy way to lose for good before you even know you’re in the game.

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